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Evidence - Prior Consistent Statements

R v Luceno (Ont CA, 2015)

In this criminal case the Court of Appeal considered the rule against the use of prior consistent statements in evidence, and exceptions thereto:
Admissibility of Prior Consistent Statements

[50] Prior consistent statements made by a witness out of court are generally inadmissible because they are a form of hearsay, they lack probative value, they are self-serving, the repetition of a statement by the same person does not make it more likely to be true, and they are not corroborative because they lack independence: R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10 (CanLII), [2008] 1 S.C.R. 272, at paras. 5 and 7.

[51] Two exceptions to the inadmissibility of prior consistent statements are applicable on this appeal – narrative of how the complainant’s story was initially disclosed and rebuttal of an allegation of recent fabrication or collusion.

Permissible use of the Complainant’s Prior Consistent Statements

a. Narrative

[52] The narrative may assist in determining the fact and timing of the statements which may in turn assist the trier of fact in the assessment of the credibility of the complainant or with respect to a fact in issue: Dinardo, at para. 37; R. v. F. (J.E.) (1993), 16. O.R. (3d) 1, at pp. 20-21.

[53] It is important to distinguish between using a prior consistent statement to establish the context of a complaint to assist in the assessment of the credibility of the complainant, and the impermissible use – to confirm the truthfulness of the complainant’s testimony. In this case, the appellant rightly conceded that R’s evidence of statements made by the complainant were relevant to the fact that the statements were made and when they were made, as it goes to the credibility and reliability of the complainant.

b. Rebutting Allegation of Recent Fabrication

[54] Where there is an allegation of recent fabrication, or collusion, by a witness, a prior consistent statement is admissible to rebut the alleged recent fabrication or collusion. The prior consistent statements have probative value to the extent that they show a witness’s story has not changed as a result of a new motive to fabricate: R. v. O’Connor (1995), 1995 CanLII 255 (ON CA), 25 O.R. (3d) 19 (C.A.). It is not admissible for the truth of its contents. Only statements made prior to the time when the motivation for the alleged collusion arose are admissible: Stirling, at paras. 5 and 7; F. (J.E.), at p. 14.


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